By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
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In May, a Manhattan Jury acquitted two police officers of raping an intoxicated woman in her apartment while on duty in 2008. The officers were convicted of official misconduct, however, and were immediately fired by Police Commissioner Raymond Kelly for returning repeatedly to the woman's apartment without notifying their superiors.
In media interviews following the widely reported and controversial acquittal, jurors cited a "lack of corroboration," such as DNA evidence, to tie 9th Precinct Patrol Officers Kenneth Moreno and Franklin Mata to the alleged December 2008 sexual assault. The verdict sparked protests and criticism of the jury, defense attorneys, and prosecutors.
What wasn't reported, and what the jury never heard, was that Mata and Moreno had another documented and troubling encounter with an intoxicated young woman outside an East Village bar in August 2008, just a few months before the alleged sexual assault.
In the August incident, Mata and Moreno were accused of being verbally abusive to a woman, calling her a "cunt" and a "bitch," among other things. They pushed her around, causing scratches and bruises on her wrists. They refused to take her criminal complaint for theft. They refused to identify themselves. They detained her twice on specious grounds, never read her Miranda rights, held her for several hours, and let her go without explaining why she had been arrested.
The Voice has learned that the Manhattan District Attorney's office was not only aware of this second incident (investigators interviewed the second woman in 2009), but chose not to introduce it into evidence at trial. In addition, documents show that the Civilian Complaint Review Board substantiated—in other words, considered credible—the woman's account for offensive language and recommended that the NYPD charge the officers with violating department rules. (Both were involved, but the CCRB only substantiated allegations against Mata.)
"I was shocked and upset that they didn't use my case in the trial," says the now-24-year-old Long Island University graduate student, whom we'll call Caitlin. (The Voice is withholding her identity at her request.) "My case could have helped. You had another example of severe misconduct involving the same officers—abuse of power, involving the opposite sex, a vulnerable victim. It shows a pattern of misconduct."
The rules on introducing what are known in legal jargon as "prior bad acts" are very strict, but they can be raised in some situations if the defendant takes the stand. Since both Mata and Moreno testified, prosecutors theoretically could have brought in Caitlin's case on cross-examination. But they may have felt the case would not have had an impact on the outcome, that it wasn't relevant to the rape allegation, or they didn't think it would be allowed in by a judge.
Asked why Caitlin's case was not introduced, a spokeswoman for Manhattan District Attorney Cyrus Vance Jr. said she could not comment on trial decisions and what evidence is admissible.
CCRB spokeswoman Linda Sachs confirmed that the agency investigated an encounter on that date. "It's not our practice to comment on the specifics of any particular complaint," Sachs tells the Voice.
Chad Siegel, who represented Moreno along with Joseph Tacopina, said he wasn't previously aware of the allegation. "It sounds like someone who is disorderly got arrested and now wants to capitalize on what happened," he says. "It sounds like sour grapes to me."
Siegel adds that neither officer had poor disciplinary records: "My guess is that even the D.A.'s Office discredited her. If they thought it was relevant, they would have used it."
Edward Mandery, Mata's lawyer, tells the Voice, "The prosecution saw it for exactly what it was, that this wasn't anything of substance. People make complaints about police officers every single day."
"She's in a bar, they are refusing to serve her, what does that tell you?" he adds. "The D.A. left no stone unturned in this case, and they didn't feel this was in any way relevant. There's a reason for that."
Caitlin, of Dominican descent, was raised in Queens by her grandparents. She attended the High School for Arts and Business, and then LIU, where she majored in English and graduated with honors. She has worked as an investigator for a public defender's office, and has traveled widely. She is currently seeking a master's degree in public administration at LIU, and wants to start a nonprofit focusing on international women's issues. She has never been previously arrested, and has no criminal record.
On August 21, 2008, Caitlin had been drinking for several hours with friends in a Village dive called Cheap Shots, at First Avenue and 9th Street. The bar, in a former butcher's shop, has plywood floors and walls covered in graffiti.
Caitlin, then 21 and still an undergrad, was celebrating. She was planning to go to India that week for a study-abroad program to help her obtain her undergraduate degree at LIU. Late in the evening, Caitlin's friend asked for two last shots. The bartender refused to serve him, they argued, and she ordered them to leave.
Outside on the sidewalk, Caitlin encountered a group of teens. She was holding a tote bag in her arms, which contained her cell phone, her friend's cell phone, and their wallets. Her friend was in the bathroom.